State v. Tillett

351 So. 2d 1153
CourtSupreme Court of Louisiana
DecidedOctober 10, 1977
Docket59550
StatusPublished
Cited by19 cases

This text of 351 So. 2d 1153 (State v. Tillett) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tillett, 351 So. 2d 1153 (La. 1977).

Opinion

351 So.2d 1153 (1977)

STATE of Louisiana
v.
Lindy TILLETT.

No. 59550.

Supreme Court of Louisiana.

October 10, 1977.

Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

On January 16, 1975 in the early afternoon, a man entered Brotherhood Grocery in New Orleans. He wore a handkerchief tied around his mouth and carried a sawed-off shotgun partially wrapped in a handkerchief. He demanded to be given money from a cigar box in which about one hundred dollars had been hidden. The store owner, Mrs. Camile Jackson, gave him the *1154 money. The robber forced Mrs. Jackson and her elderly uncle who also worked in the store to lie on the floor. The robber fled.

Mrs. Jackson reported the crime to police and described the robber as a light-complexioned black male about eighteen or twenty years old and about five feet eight or nine inches tall. She identified the man who robbed her from a group of photographs and the man, whose name was James Cook (or Cooke), was arrested. Thereafter the arrestee's mother came to Mrs. Jackson's store and told her that the store owner mistakenly identified James Cook. Mrs. Cook suggested to her that a man named Lindy Tillett (defendant herein), whom Mrs. Jackson did not know, might have been the robber. Subsequently, Mrs. Jackson's son told her that the description she had given police fit a person named Lindy Tillett with whom he played pool. Mrs. Jackson then informed police that a person named Lindy Tillett might be the person who held her up.

Defendant Tillett was arrested and Mrs. Jackson and her uncle were asked to come to a lineup in which he would be standing. Although they knew Tillett would be in the lineup, neither victim knew Tillett and neither had been shown any pictures of him. Before the lineup defendant Tillett, with the assistance of counsel, chose his own position and selected the man he chose to stand beside. All of the men were dressed exactly alike in overalls and all were barefooted. The men were of approximately the same height, build and skin color as the suspect. Both Mrs. Jackson and her uncle, who were seated apart, independently identified Tillett as their assailant.

Defendant Tillett was charged with the armed robbery and was tried by jury. At trial, the state's case was based solely on the identification of the Jacksons and the testimony of one other witness, who had seen a man she identified as defendant sitting near the store before the crime. Defendant had asked her who was working at the Brotherhood Grocery.

After hearing this evidence, the jury convicted defendant Tillett and he was sentenced as a multiple offender to spend thirty-three and one-third years at hard labor. [1] He now appeals on the basis of three argued assignments of error.[2] Because we reverse Tillett's conviction on the basis of error numbers four and five, we first discuss those assignments.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant Tillett argues that the trial court erred in failing to allow him to demonstrate that he did not have a Spanish accent, and in failing to grant his motion for new trial on the same basis.

The alleged error arose in the following manner. At trial, Mr. Bither Jackson, Mrs. Jackson's seventy-four year old uncle who was present in the store when it was robbed, testified on cross-examination as follows:

"Q. You said you are positive that Mr. Tillet is the man that held you up. Why do you remember him so well?
A. I remember. I remember you. If I see you one time I remember you.
Q. How do you remember him? What is there particular about him that makes you remember?
A. By his forehead. His eyes and his accent. The way he talked.
Q. Did he have an accent? What kind of accent did the man have?
*1155 A. Kind of like a Spanish or something like that. I don't know.
Q. Are you certain that the man that held you up had a Spanish accent?
A. What?
Q. Mr. Jackson, you said the man that held you up had a Spanish accent?
A. The one that robbed me.
Q. Are you sure?
A. Yes.
Q. Did you think Mr. Tillet had a Spanish accent?
A. The one that robbed me.
Q. Do you think that he had that Spanish accent? The one at the table? There is no way to tell. He didn't speak any English.
A. It's kind of the way that I feel.
Q. You said you could identify Mr. Tillet by his accent. Have you ever heard Mr. Tillet speak?
A. I know the fellow that came in that store and held me up."

Out of the presence of the jury defense counsel moved to allow defendant to read a passage of the court's choosing so as to demonstrate to the jury whether he spoke with a Spanish accent. He asked that such demonstration not expose him to cross-examination. The state argued that any such recital would have the effect of waiving defendant's privilege against self-incrimination and would thereby subject him to cross-examination. Defendant also asked that he be allowed to read a passage in camera. The trial court denied defendant's motions, ruling that any voice demonstration would waive defendant's fifth amendment privilege. Because defendant refused to waive his privilege, no reading took place. Defendant did not take the stand in his own behalf. He now argues that the trial court erred in its rulings, that the errors prejudiced his defense, and that his conviction should be reversed. We agree.

It has long been held that the compelled display of identifiable physical characteristics infringes no interests protected by the constitutional privilege against compulsory self-incrimination. In the case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that evidence of analysis of petitioner's blood taken over his objection was not inadmissible on the ground that it violated defendant's privilege against self-incrimination. There the Court stated:

"It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling `communications' or `testimony,' but that compulsion which makes a suspect or accused the source of `real or physical evidence' does not violate it." 384 U.S. at 763-64, 86 S.Ct. at 1832. (citations omitted) (emphasis added)

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Bluebook (online)
351 So. 2d 1153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tillett-la-1977.